S1152 of 2003 v Minister for Immigration
[2005] FMCA 1881
•20 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1152 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1881 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the applicant was denied procedural fairness – credibility findings – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.424(1), 427(1)(d)
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Ethnic Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Gomez v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 190 ALR 543
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
| Applicant: | APPLICANT S1152 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1049 of 2004 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 19 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr T Rielly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1049 of 2004
| APPLICANT S1152 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 December 2000 and handed down on 17 January 2001 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to the proceeding.
The applicant, a citizen of Sri Lanka arrived in Australia on 18 July 1996. On 31 July 1997 he applied for a protection (Class AZ) visa with the then Department of Immigration & Multicultural Affairs (“the Department”). On 24 March 1998 a delegate of the respondent refused the grant of a protection visa and applicant applied for review of that decision with the Tribunal.
The applicant was previously a party to the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 class action in the High Court of Australia. That proceeding was remitted to the Federal Court of Australia by order of Gaudron J made on 25 November 2002 and was subsequently dismissed by Emmett J on 20 February 2004 in S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.
The applicant relies upon his amended application filed 3 September 2004 and his written submissions filed 5 December 2005. He alleges that the Tribunal denied him procedural fairness and sets out a number of particulars in support of this ground.
i)The Tribunal before making its decision failed to make the applicant aware of and provide official cables and reports and failed to give him an opportunity to respond to the adverse material in possession of the Tribunal categorised by the delegate of the respondent.
ii)The Tribunal’s statement: although the contents of the anonymous letters are before the Tribunal, they have not formed any part of the Tribunal’s reasons in affirming the decision, the applicant states how ever they have formed an influence on the applicant’s claims adverse to his interests.
iii)The Tribunal failed to appreciate that the imputed political opinion is an essential element in considering the fear of serious harm amounting to persecution of the applicant.
iv)The Tribunal erred in law amounting to jurisdictional error in finding that the applicant had no political profile such as would have caused the authorities to have an adverse interest in him.
v)The finding that there is no evidence of any or any significant discrimination against the applicant is an error of law amounting to jurisdictional error.
vi)The Tribunal failed to perform the duty imposed on it by s.424(1) of the Migration Act 1958 (Cth) (“the Act”).
vii)The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Act.
The Tribunal decision
The Tribunal conducted a hearing on 3 May 2000. The applicant attended and gave oral evidence with the assistance of a Tamil interpreter.
The Tribunal accepted that the applicant is a Tamil. He claimed to fear persecution in Sri Lanka by reason of his race and that he was harassed by Sinhalese hooligans and estate youths on the tea plantation where he worked. He claimed to have been abducted by LTTE militants one night in 1990 one night in May 1990 and in January and May 1996 he said that he had been arrested and tortured by the police on suspicion of LTTE involvement. The applicant claimed to fear further harm from police and LTTE if he returned to Sri Lanka.
In its assessment of the applicant’s claims and his evidence relevant thereto the Tribunal found that the applicant was not credible and that his claims were fabricated. It noted that the applicant’s evidence as to his political profile was implausible and inconsistent with independent country information. The Tribunal accepted that the applicant was a Tamil but his substantive claims of harm were rejected. The Tribunal found that the applicant had not been abducted and threatened by the LTTE, nor arrested and tortured by the police as claimed. Thus the Tribunal concluded having regard to all of the evidence relating to the applicant that he was not of adverse interest to the LTTE or the authorities and that his claim of fear of persecution were not well founded for a Convention reason.
The Tribunal’s findings that the Applicant was not credible and had fabricated his claims are matters of fact par excellence (Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). Accordingly, provided the Tribunal’s credibility findings were reasonably open to it, no error is committed (Kopalapillai v Minister for Immigration and Ethnic Affairs (1998) 86 FCR 547 at [558]-[559]; W148/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703 at [64]-[69], per Tamberlin and R D Nicholson JJ). Clearly the Tribunal’s conclusions were reasonably open to it for the reasons it gives including the country information to which it plainly refers. It is unlikely that a State party would grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [428], per McHugh J).
The applicant contends that the Tribunal denied him procedural fairness in that it failed to make unspecified country information available to him. The Tribunal noted that it discussed with the applicant country information it had before it so such a claim cannot extend to the information there noted. Otherwise the claim holds no factual foundation because the applicant has not produced a transcript of the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]).
The applicant contends that the Tribunal’s statement recorded at page 91 of the Court Book that the “dob in letter” did not form part of the Tribunal’s reasons. As the applicant was given the substance of the allegations in the letter and accordingly invited to comment by the Tribunal there is no breach of procedural fairness as stated in VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [29].
The applicant contends that the Tribunal was obliged to inquire into his alleged Post Traumatic Distress Disorder (PTSD) pursuant to s.427(1)(d) of the Act. This claim fails because there is no evidence of the Tribunal being made aware of the alleged condition and further the section creates no duty on the Tribunal to inquire (Gomez v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 190 ALR 543, at [26]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
The other grounds in the amended application appear to traverse with the merits of the decision. This Court is precluded from any such review. I note that I explained to the applicant during the course of the hearing that the Court’s role was limited only to jurisdictional error. On a fair reading of the decision I can see no error, let alone jurisdictional error in the decision reached.
As no jurisdictional error is apparent the applicant should be dismissed with costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 20 December 2005
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